ECCC: Another Test of Funding of International Justice

Another Test of Funding of International Justice

by Stan Starygin

The term ‘international justice’ has become ubiquitous with the inception of international criminal tribunals in Europe, Africa and Southeast Asia in the last decade and a half. Within this span of time the world has gone from no international criminal tribunals to over half a dozen of them currently operating in accordance with time-limited arrangements, and one, the International Criminal Court (ICC), on a permanent basis.

Although generous United Nations (UN) funding was provided – and continues being provided -- to the first international criminal tribunals established in the early 1990s, the establishments of courts which followed took the shape of the UN contributing only a portion of the budget, due to a number of reasons, leaving the national government of the state within the sovereignty of which such a court was being established to secure funding independent of the UN. The issue with the latter lies in the fact all countries involved in such schemes are improverished post-conflict societies which, among other shortcomings, lack prudent financial management, thus, subjecting their scarce resource to widespread and unfettered abuse. The governments of these countries, therefore, are expected to reach out to the international community – in most cases represented by the particular state’s largest donors – to raise funds to uphold its end of the bargain with the UN.

One of such countries is Cambodia where a criminal tribunal to try the Khmer Rouge is currently underway. The nature of the deal between the UN and the Royal Government of Cambodia (RGC) reflects the above-outlined arrangement in accordance with which the RGC is responsible for contributing in excess of $13 million to the $56 million budget originally estimated for a 3-year period of operation of the tribunal. The amount to be raised and contributed by the RGC had not been perceived as significant or insurmountable in a reasonably structured fundraising campaign until shortly after the first call for pledges was announced which resulted in a poor showing. RGC since has mounted several fundraising efforts broadening the sweep of the net every time it was cast. This more open-minded – or some might argue desperation-driven – approach soon resulted in the acceptance of contributions from the private sector, the first in the ranks of which became Microsoft Singapore by contributing $100,000 in January 2007. Negotiations with other potential large private contributors were reported to follow. As of today, the RGC’s attempts to tap into the private sector’s resources to bridge the funding shortfall in the tribunal did not seem to have attained the set objectives with the tribunal continuing to report its shortfall as standing at about $5 million. Now that most of its private and public sector fundraising efforts have either tapped out or come to a grinding halt, the RGC’s best bet is likely to be the United States, be it the federal government or America’s corporations.

The question of the federal government’s possible financial contribution to the Khmer Rouge Tribunal (formally known as the Extraordinary Chambers in Courts of Cambodia (ECCC) was recently discussed during US Deputy Assistant Secretary of State for East Asia and Pacific Affairs Scot Marciel’s visit to Cambodia which resulted in an inordinate flurry of controversy sparked by the Cambodian Ministry of Foreign Affairs issuing a statement indicating that the US requested the establishment of a position of a special US advisor to the ECCC as a condition for US funding of the court and the United States vociferously denying this interpretation of the statements of its representatives. In the wake of this controversy, perhaps, all aspects of the US offer were discussed except for one – why the ECCC deserves US funding.

As any business model has it, a cost-benefit analysis is warranted before any funding can be committed or even pledged. This model can be predicated upon (a) a spot analysis of the operation of the court, (b) an analysis of constants (such as the capacity of judges, prosecutors, defense lawyers and the court’s top administrative personnel, the court’s internal rules and other applicable laws) and variables (such as donor support, independence of the court’s judicial personnel, the court’s perception as being able to deliver justice to the Cambodians within its subject-matter jurisdiction, and the court’s lower level personnel), and, finally, (c) ways in which US funding and more broadly US participation can add value to the ongoing process. This evaluation is paramount and can be accomplished by a team of legal experts within a reasonable period of time. If accomplished, this analysis will become the most comprehensive analysis of the ECCC available today which will give the US Congress a fair starting point for ECCC funding-related deliberations. If released to the general public, this analysis – provided it is of credible quality – will help US corporations potentially interested in the funding of the process make an informed decision on whether such funding passes the cost-benefit test in their respective opinions. If the United States, on the other hand, fails to enter the process on the basis of a transparent mathematical analysis of the quality of the court and instead employs political reasons (some might argue that the US might have an interest in any adjudicative process which may place the US bombing of Cambodia in the early 1970s under a microscope) to make such an entry, the court will obtain yet another donor “who does not ask questions” and who is in it for political reasons rather than those of international justice. To sum up, the United States, therefore, at this point has several options in creating a relationship with the ECCC: (a) subject the process to a well-structured quality test and refuse to enter if the process fails the test, (b) subject the process to a well-structured quality test and agree to enter if the process passes the test, (c) subject the process to political considerations and refuse to enter, (d) subject the process to political considerations and enter, (e) continue observing the process from the sidelines, (f) continue observing the process from the sidelines and provide information on the process to US corporations who might be potentially interested in contributing to the process (g) contribute funding to the process indirectly, thus, avoiding direct funding of the ECCC.